SECOND NATIONAL ANTI-CORRUPTION SUMMIT · 107 SECOND NATIONAL ANTI-CORRUPTION SUMMIT 18.1...

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SECOND NATIONAL ANTI-CORRUPTION SUMMIT

SECTION 6

ROUNDTABLE DISCUSSION :THE PROTECTED DISCLOSURESACT, 2000 (Act No.26 of 2000)

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FIGHTING CORRUPTION TOGETHER

INTRODUCTION

The Protected Disclosures Act (PDA) was passed in 2000. Since the promulgation of theAct, various officials sought to use its protection. Some officials were successful, othersnot. The South-African Reform Commission has since 2004 called for comment on theproposed revision of the Act, in order to address on what has been perceived as certainweaknesses with respect to both its content and implementation. For this reason aroundtable discussion on the Act was thought to be appropriate for the Summit.

Discussion on the PDA was prefaced by presentations from officials as indicated in theTable A hereunder.

TABLE A: ROUNDTABLE DISCUSSION: PANELLISTS

NAME ORGANIZATIONMr Tim Modise (Chairperson) SABCAdv Johnny de Lange Deputy Minister - Justice & Constitutional

DevelopmentProf Stan Sangweni Public Service CommissionMs Lorraine Stober Open democracy Advice CentreMs Alison Tilley Open democracy Advice CentreMs Dallene Clark SA Law Reform CommissionMs Petronella Branford Office of the Public ProtectorMs Prakashnee Govender Congress of South African Trade Unions (Cape Town)Mr Thami Maseko Secretariat – NEDLAC

The presentations made by the representatives as indicated in the above-mentionedTable A became the basis for the plenary discussion which followed. Some of theconcerns raised in plenary were that some whistleblowers were physically threatened.Also, there is no stipulation in the PDA to indicate that managers are obliged toinvestigate specific allegations. Moreover, there is a need to translate the PDA into allofficial languages and each government department should develop a policy onwhistleblowing.

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18.1 HISTORICAL OVERVIEW OF THE PROTECTED DISCLOSURES ACT, 2000 (ACT NO. 26 OF 2000) BY ADV. JOHNNY DE LANGE53

Following recent debate in the newspapers, I have realized that members of the mediaand the general public do not really understand the issue of whistleblowing. There is ageneral belief that no matter what one does – how or when it was done – whistleblowerswould be covered regardless, simply by virtue of the Protected Disclosures Act (PDA)Perpetrators of crime themselves often blow the whistle on fellow partners in crime asa way of detracting attention from their own wrongdoing. So, I first need to ensure thatyou understand the PDA clearly. The PDA is not a free for all and there are very clearprocedures and jurisdictional facts that one has to comply with to be able to fall withinthe parameters of the PDA.

The study of whistleblowing legislation in the rest of the world revealed that protectionwas incredibly narrow. In some countries, it was only for public servants or publicemployees, and only when certain types of evidence were disclosed. We realized thisconcept was not adequate for this country and drew up our own ideas. You may like toread Clauses 1 and 2 of the PDA so that you understanding the aims and objectives ofthe Act. There are really three components to it:

• what is being protected;

• what are the remedies for a person once they have to be protected in law; and

• what are the procedures they have to follow when they make these disclosures.

To put it differently, what are the jurisdictional facts that a person must comply withbefore he/she falls within the parameters of this Act and what procedures he/she mustfollow? What one cannot do to a person if he/she falls into the first two categories, andif one does something to a person that is not allowed, what will happen then?

Let’s look at the applications that need to be complied with before a whistleblower fallswithin the parameters of the PDA:

i) only employees receive protection - so we are only dealing here with employmentrelationships;

ii) this act is applicable to public employees and private employees, so it is applicableto the private sphere. This is most important and South Africa is probably the only

53 Johnny de Lange is the Deputy Minister of Justice and Constitutional Development.

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country in the world that does (because our Constitution allows horizontal andvertical application of rights);

iii) only certain specific types of disclosures are protected, thus not all information inthe workplace is eligible. It is only particular types of information that are covered,i.e. mainly information emanating from, or concerning the conduct of, the employeror an employee in the workplace. The types of information include the following:

• any kind of criminal offence (clearly as a society we would want people todisclose criminal offences in the workplace);

• if one has failed to comply with any particular legal obligation (we have createdlaws and legal obligations and we want them to be complied with);

• if there is a miscarriage of justice or the possibility of a miscarriage of justice(this is very wide and almost anything can be read as a miscarriage of justice);

• if the health or safety of an individual is going to be endangered;

• if one’s environment will be damaged through some action of that departmentor employer;

• if there is an unfair discrimination in terms of the promotion of equalitylegislation; and

• lastly, if you try and conceal any of the above.

So, it is very specific types of information that can be disclosed and covered bythe PDA.

iv) it is important to note that this act works retrospectively. This Act specifically statesthat a protected disclosure can involve issues that arose before the PDA (prior to1991). In other words, if someone committed a crime in 1960 it would be possibleto make a protected disclose on that information; and

v) no contract of employment is allowed to undermine or exclude any aspect of thislegislation. One cannot sign a contract with an employee specifying that theemployee will not disclose illegal or incorrect acts or information. If such a contractis signed, the PDA will over-ride this proviso and the contract would be void.

Once an employee falls within the parameters of this Act and wishes to disclosurecertain information, there are then certain procedures to be followed. Our explanatorybooklet on the PDA itemizes these procedures under the heading “the door throughwhich you should go” (in order to be eligible for protection). There are five “doors” andeach one of them has different requirements to be complied with.

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i) As a ‘whistleblower’ one can seek advice from a legal practitioner or from someoneelse capable of giving advice (i.e. a shop steward). Choosing this “door” hasspecific requirements: it doesn’t have to be in good faith - as long as one seeksadvice and that advice is confidential.

ii) Where one discloses the information to an employer. Obviously one wants toencourage this method so that the employer himself or herself can deal with theissue. This “door” has to be in good faith; and should substantially be in accordancewith whatever procedures the employer provides for. However, when there are noprocedures, the PDA specifies what should happen then. Again, this second “door”is comparatively easy to go through. To a large extent it is just good faith andfollowing existing procedures.

iii) Disclosure to either a member of Cabinet or Executive Council (i.e. to a politicalauthority within a government department). Here again one needs good faith inmaking the disclosure. The individual body that one discloses to should fall withinthe parameters of that department, so that that department can deal with it. So,clearly whatever one complains about needs to fall in the ambit of that particulardepartment.

iv) There are certain regulatory bodies that one could raise the problem with. ThePublic Protector and the Auditor General are two such bodies (and we have allowedthrough regulations to expand these regulatory bodies). Here again one needs toensure good faith; and ensure that one’s choice of body falls within the mandate ofthe Public Protector or the Auditor General or they will have no authority or no legalmandate to deal with it. For the first time, this “door” includes the proviso that onemust reasonably believe that the information is substantially true. Thus it can beseen that hurdles are getting higher when these mechanisms are followed.

v) The fifth and last “door” is an approach to the media or similar institutions. Thereare five hurdles or steps that one has to pass through in order to go through this“door”:

a) good faith;

b) a reasonable belief that the information one is disclosing is substantially true;

c) one may not disclose for personal gain (very, very important!). So if there is anyreward involved the person concerned would not be eligible for protectionunder the PDA;

d) it must be reasonable for one to make the general disclosure under thecircumstances; and

e) one must have met one of four conditions:

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• that the impropriety is of an exceptionally serious nature;

• that one is too wary of disclosing to an employer suspecting that no actionwould be taken within a reasonable period;

• a reasonable belief that the evidence will be concealed and therefore itwould be pointless to disclose to the employer; and

• a belief that one would be subjected to occupational detriment.

One or more of these “doors” can be used at any given time as long as the relevantsteps within the respective “doors” are complied with. Now one needs to consider:

• have the jurisdictional facts been complied with; and

• have all the procedures been complied with?

If the jurisdictional facts and the relevant procedures have been complied with correctly,there are certain ‘occupational detriments’ (as they are called in the PDA) that may notbe applied to the person disclosing. The whistleblower may not:

• be subject to disciplinary action;

• be dismissed, suspended, demoted, harassed or intimidated;

• be restricted from transfer or promotion;

• have their contract subject to any additional terms or conditions of employment;

• have their retirement brought forward or altered at all; and

• be refused a reference or given an adverse reference.

There are other detriments to which an employee may not be subjected by theemployer, but these I have listed will give an idea of protection afforded to a genuinewhistleblower who has taken the correct steps before disclosing. However, should anydetriment be inflicted by the employer, the employee can take any of the following steps(which are dealt with under “Remedies” in Section 4 of the PDA). The employee may:

• go to any court or use any other process that is provided, i.e. the CCMA;

• resort to the Labour Relations Act (in as far as an unfair dismissal in breach ofSection 3, will be deemed an unfair labour practice). One would not have to provean unfair labour practice, it would be “deemed” as such;

• also resort to the full range of determined ‘occupational detriments’ (other than adismissal in breach of Section 3.) and dealt with it in terms of a different chapter

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within the Labour Relations Act. So in this Act we have taken the Labour RelationsAct and linked it up with the PDA to ensure that one has these protections; and

• ask for a transfer within the department if one feels adversely affected (such atransfer may not be less favourable than one’s present position). The employermust comply with this request - if it is reasonable.

Of course there are other more specific regulations and guidelines which I will not gointo detail about now and there are still certain aspects of the PDA that need furtherinvestigation and have been referred to the SA Law Reform Commission forconsideration. A few of these aspects are listed hereunder:

i) Should the PDA go beyond the employment relationship to protect people? Forexample, where there are contractual relationships or where corruption iswitnessed by a member of public; should there be some form of protection?

ii) The Open Democracy Bill provided certain civil and criminal immunities forwhistleblowers (we thought this was a terrible suggestion because it underminesthe basic civil and criminal law that exists in this regard).

iii) Should a whistleblower be entitled to sue their employer and seek punitivedamages?

iv) When an employer actually commits a detrimental act against a whistleblower inhis/her employ, should it be deemed an offence? In other words, should it becriminalized?

We have not had time to look at all the possible consequences of the PDA and haverequested the Law Commission to look into these.

I have noticed that the Law Commission has also included another issue – whether theidentity of the whistleblower could remain a secret? Parliament was absolutely opposedto this concept as it completely undermines the whole concept of whistleblowing, so Ilook forward to hearing the outcome of the Law Commission’s research in this regard.

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18.2 ADVOCACY ROLE IN PROMOTING THE PROTECTEDDISCLOSURES ACT, 2000 BY PROF STAN SANGWENI54

I have three points to share with you.

Firstly, the Public Service Commission is not included in the PDA as one of the regulatedbodies to whom disclosures could be made, for the simple reason that this would havecreated a conflict of interest in terms of the PSC’s role as a body of recourse forgrievances from the public sector. The PSC has played a very prominent role inpromoting this Act:

• After the PDA had been promulgated in 2000, the PSC organized severalworkshops for officials in the provinces and at national level to publicize the Act andits provisions.

• As part of the PSC’s advocacy role we issued an explanatory booklet. We producedthis booklet in association with the Institute for Security Studies (ISS) and the OpenDemocracy Advice Centre (ODAC). It is a very useful, user-friendly booklet whichoutlines in very simple, straightforward terms how the various parts of the Act apply.

• The PSC has been prominent in the media to publicize the PDA. There have beennumerous appearances on television and in the electronic media and interviews inthe printed media.

Although the PSC headed a diverse publicity campaign on the PDA, there is still a greatdeal of ignorance and a clear lack of knowledge and understanding on the part of publicofficials concerning the provisions of the Act. It is difficult to discern the reasons for lackof awareness on their part. We are inclined to think that it is probably because theregulations and guidelines required under the PDA, have not been sufficientlypublished, but one would have thought that the kind of advocacy that we have playedand our extensive publicity had been adequately covered, to at least inform officials ofthe basic procedures – but it seems not.

In most instances where whistleblowers would appear to have been victimized or haverun into problems after disclosing, it is invariably because they have failed to follow thecorrect procedures. There is an unfortunate trend of resorting to the media and ignoringthe correct channels. I have actually yet to hear of an instance where somebody ran intoproblems because they reported the matter through the correct channels. The PSC hasmade a particular effort to advise public officials that if they do resort to the media, thereare five conditions they should first fulfill. The matter:

54 Prof Stan Sangweni is the Chairperson of the Public Service Commission (PSC).

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i) must have been reported to an employer or to the Auditor-General or to the PublicProtector – who had then failed to address the matter;

ii) was not reported to any of these prescribed people because of a personalconviction that it would not be adequately attended to;

iii) was not reported to any of the prescribed people because of a fear of victimization;

iv) was not reported to any of the prescribed people because it was of an exceptionallyserious nature; and the matter

v) must be of public interest and must not be an issue of personal concern or result inpersonal gain.

Practically none of these reasons can be applied to cases that have been reported tothe media in recent times.

Finally, I would like to say that the PSC interacted with the Minister of Justice &Constitutional Development on the issue of guidelines and a regulatory framework andwe are reliably informed that the guidelines are in the process of preparation andtherefore should come to hand in the near future.

18.3 RECOMMENDATIONS MADE BY THE SOUTHAFRICAN LAW REFORM COMMISSION - A DUAL PRESENTATION BY MS DALLENE CLARK55 AND MS PETRONELLA BRANFORD56

The SA Law Reform Commission (SALRC) is in the process of compiling a report on thereview of the Protected Disclosures Act, 2000 (PDA) and has published two documentsthus far: an issue paper in January 2003 and a discussion paper in August 2004. Themain focus of the report is the extension of the ambit of the Act. Areas highlighted fordiscussion during the compilation of the report are:

• the extension of the PDA beyond the employer/employee relationship regardingwrongdoing in the workplace;

• providing immunity from criminal and civil liability;

• providing protection for the identity of whistleblowers;

• providing additional remedies; and

• the creation of offences within the PDA.

55 Ms Clark is with the South African Law Reform Commission.56 Ms Branford is with the Office of the Public Protector.

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With regard to the extension of the ambit of the PDA, the SALRC has seen a notableincrease in the use of part-time and temporary workers and also the trend ofoutsourcing. The SALRC therefore recommends that the ambit of the Act be extendedto include independent contractors, consultants, agents and other workers.

Relating to the extension of the PDA, the SALRC has also found that a number ofstatutes allow for persons to blow the whistle but that they are not protected againstbeing victimized on account of their disclosure. Without making recommendations in thisregard, the SALRC has posed the question for public debate whether citizens’whistleblowing should be included? The Office of the Public Protector (OPP) agreedwith the more inclusive approach defining the term “employer” or “worker”. This shouldindeed be adopted. It accords with the practical experience of the Office of the PublicProtector and the express need to expand the scope of the application of the PDA.

Regarding the extension of the PDA to include citizens’ whistleblowing – we are of theview that the expansion hereof would entail defining a number of issues such as:detriment against which protection would be applicable, the remedies available, etc.Experience has shown that extending a statute to cover areas not originally intended bythe legislature, often result in serious interpretation and implementation difficulties. Theview is therefore held that the concept of protecting the citizen ‘whistleblower’ should notbe incorporated into the PDA at this stage.

If the recommendation that the PDA be extended, is accepted, then the SALRCrecommends that the definition of “employee” be amended to bring it in line with theproposed extended PDA. It also proposes that the word “employee” be changedthroughout the Act to “worker”. A worker would then be any person who, in any manner,assists in carrying on or conducting a business of an employer or client including, butnot limited to, any independent contractor, consultant, agent or person renderingservices to a client, or being employed by a temporary employment service.

The Office of the Public Protector supported this amendment of the definition of“employee” but we would like to make a further recommendation. One of the complaintsinvestigated by our office illustrated the clout of whistleblowers who are formeremployees. In this case the whistleblower decided to disclose irregularities after he hadresigned from the municipality. Although no longer an employee, he shared similar fearsto ‘whistleblowers’ who are protected in terms of the PDA: civil action for defamation,breach of confidentiality, etc. We also noted that Section 3. of the New ZealandProtected Disclosures Act defined an employee to include former employees, and wethink former employees should be included in the definition.

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As the concept of “client” is included in the new definition of “worker”, it is necessary toinsert a matching reference into the definition of employer. The result would be that anemployee of an employment service who is rendering services to a client will, in fact,have two employers as far as the PDA is concerned: firstly, an employer in a strict sense(temporary employment service) and an employer who is the hirer of the services or theclient.

The SALRC has also questioned whether a new term such as “work-giver” should becreated in the PDA to replace “employer”.

The Office of the Public Protector found that it might even be feasible to invent a newterm, such as “work provider” to avoid any confusion and to distinguish the meaning of“employer” to that in the labour law.

With regards to occupational detriment, the SALRC is of the view that the definition of“occupational detriment” should be extended to include reprisals such as defamationsuits and suits based on alleged breach of confidentially agreement or duty. Such suitsare frequently used to intimidate would-be ‘whistleblowers’. The SALRC also proposesto include a detrimentivity experience by contract workers – the loss of contract – or theotherwise inexplicable failure to be given a contract.

It is common cause that employees are generally subject to confidentiality by law,agreement, oath or practice. For instance, the Public Service Regulations imposes aduty on an employee when handling official information and papers not to release theseunless they have the necessary authority. In one of the case studies considered by theOffice of the Public Protector, Mr X was charged in a disciplinary enquiry inter aliacontravening this regulation. The Presiding Officer found that as Mr X went further thandisclosing to the designated entities (he released it to the public) that the PDA was nolonger applicable. The question whether or not Mr X met the requirements of a generalprotected disclosure provided for in Section 9 of the PDA, was never considered.Similarly, it seemed that the employer representative argued that when the saidregulation had been contravened, it was a secret matter that constituted misconduct.Although it might be argued that it could clearly not have been the intention of thedrafters of the said regulation to prohibit disclosures of improper, unlawful or irregularconduct, we felt that it would be in the interest of legal certainty to add the phrase “ordisciplinary action” to the proposed sub-paragraph H of the definition.

The SALRC also proposes that a list of forms of occupational detriment be left open-ended to allow the recognition of further types of victimization, on the understanding that

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any form of victimization suffered by a ‘whistleblower’ would have to be shown to becausally linked, or at least partly, to an act of whistleblowing.

With regards to extending the list of persons to whom disclosures are made, it is alreadypossible to disclose to the Public Protector and the Auditor-General. The SALRC findsthat there is no good reason to limit the list to just these two bodies. The Constitutionlists a number of other state institutions supporting constitutional democracy to whom itwould be equally appropriate to make disclosures.

We suggested that the following additional institutions be added to Sub-Section 1:

• the South African Revenue Service (SARS) – in relation to tax irregularities;

• the Financial Intelligence Centre (FIC)– regarding money-laundering activities;

• the Pension Funds Adjudicator;

• the Independent Complaints Directorate – regarding misconduct by members of theSAPS:

• the Judicial Inspectorate of Prisons – if related to treatment of prisoners andconditions and practices in prisons: and

• the Public Service Commission (PSC).

With regard to the proposed inclusion of the term “ombudsman” in the discussion paper,it should be mentioned that some institutions use this term ombudsman even thoughthey are not independent or recognized oversight agencies. It is suggested thereforethat this term be more closely defined, for instance “recognized industry ombudsman”.

Regarding immunity from criminal and civil liability, the SALRC has found that potential‘whistleblowers’ who have themselves been involved in wrongdoing, might easily beinhibited from disclosing due to fear of criminal prosecution and some may be deterredby threats of defamation suits and/or official secrets suits.

Immunity from criminal and civil liability is provided for in New Zealand and suchimmunity is widely regarded as a most valuable protection given to whistleblowers. TheSALRC is of the opinion that if granted immunity from criminal and civil liability,whistleblowers may be more willing to reveal their identities and this would, in turn,defeat the problem of anonymous, frivolous or malicious disclosures. On this point theSALRC has not made a recommendation and has invited comment on whetherimmunity should be granted.

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There appears to be a significant body of opinion suggesting that it would make nosense to shield whistleblowers against victimization and occupational detriment by notaffording them the indemnity from possible criminal and civil liability arising out of aprotected disclosure. The Deputy Minister made mention of whistleblowers being foundwith their hands in the cookie jar, in situations where the whistleblower was involved inthe illegal activity, can be problematic. The opinion is that to hand out immunity in thisregard could lead to serious abuse of the PDA, we felt that the QueenslandWhistleblowers Protection Act managed to strike a balance between adequateprotection of the whistleblowers and possible abuse of the whistleblowing regime andtherefore we suggested that we introduce a similar provision in the PDA.

With regard to the identity of the whistleblowers the SALRC felt that a provisionexpressly creating a duty to protect the identity of a whistleblower would provide apositive incentive to whistleblowers.

Consultation with whistleblowers revealed that confidentiality and the protection ofidentity are their primary concerns. It is, however, anticipated that recipients ofdisclosures could be in a precarious position if they are faced with an application foraccess to information in terms of the Promotion of Access of Information Act, 2000.Accordingly, a recipient of a disclosure may be requested to provide access ofinformation relating to a disclosure which might include the identity of the‘whistleblower’. In view of the need to protect the identity of ‘whistleblowers’ it isrecommended that grounds for refusal of access to records be expanded.

From the side of the Office of the Public Protector there is thought of a possibleamendment to the PDA to add the phrase: “…or person who made a protecteddisclosure in terms of the Protected Disclosures Act”.

A number of new remedies are addressed in the discussion paper. One of them relatesto the claims for damages with no ceiling. The SALRC found that there may be a needto provide expressly for claims for damages without a ceiling and requested commenton whether the Act should create a more explicit link between the amount ofcompensation awarded and the actual loss or damage suffered by the workerconcerned.

As the PDA is not specific in dealing with remedies to prevent or cure harm caused byor threatened to a whistleblower, the Commission recommends that specific remediessuch as interdicts, including mandatory interdicts, should be available to a broadercategory of workers. The proposed amendments to clarify and extend the remedies at

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the disposal of the ‘whistleblower’ are concurred with by the OPP. It is also noteworthyin this sense that some foreign laws place a duty on the public sector entities to protectthe officers from reprisals, for example, Section 44 of the Queensland WhistleblowerProtection Act. You all know that Section 41 (b) of the PDA currently provides for anemployee who may pursue any other process allowed or prescribed by law. It is notedthat the proposed amendments to Section 4 focuses primarily on legal remedies. Fromthe Public Protector’s side, we however interpreted this section to include the lodging ofa complaint and the investigation thereof by the OPP. Accordingly, the Public Protectorcould, in appropriate circumstances, provide a suitable remedy at no cost towhistleblowers. These remarks could also apply to other ombudsmen or oversightinstitutions. However, if a matter is to be adjudicated in the Labour Law or the HighCourt, it might have considerable financial implications for workers. The suggestion thatthe Legal Aid Board is requested to make provision for such cases was informallydiscussed with a member of the board who indicated a willingness to consider thematter. It was, however, indicated that additional funds would be required. Thispossibility might be explored further.

With regards to punitive damages, all the respondents to our issue paper are opposedto the concept of punitive damages. The SALRC has found that as it is foreign to SouthAfrican law, it should not be introduced into the PDA.

With regard to the creation of offences within the PDA, the PDA does not make it anoffence for an employer to subject an employee to an occupational detriment and it isnot an offence for an employee to knowingly make a false disclosure. The‘whistleblower’ merely forfeits the protection of the Act and it may be a crime in commonlaw (criminal defamation or crimen injuria). The SALRC has provisionally found thatemployees or workers actions should not be criminalized where he or she makes a falsedisclosure. The SALRC also does not recommend that it should be an offence to subjectan employee or worker to an occupational detriment, this would just add unnecessarytension to employment relationships and jeopardize good labour relations.

Furthermore, the SALRC recommends that protected disclosures to legal advisorsshould be made in good faith, or alternatively recommend that disclosures made to atrade union representative should be protected in the same way as disclosures to legaladvisors.

The contention that these actions should not be criminalized is supported by the OPP.We are of the view that the good faith requirement when making a disclosure to a legalrepresentative is unnecessary when disclosures are made to legal practitioners, in fact,

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this provision appears to be based on the concept of legal professional privilege.Accordingly, even if a whistleblower has other motives, a legal practitioner to whom adisclosure is made when providing legal advice, may not disclose such information. It isimportant to note, however, that the aforesaid principle does not apply to trade unionrepresentatives and the proposed addition thereof is not supported by our office.

With regard to conducive workplace environments, there is a wide acceptance of a dutyon employers to provide an open and transparent work environment that facilitates theimplementation of the PDA. The SALRC has invited comment on whether a specific dutyshould be placed on employers to inform workers of their rights and obligations underthe PDA.

Whistleblowers are particularly vulnerable if they do not know the requirements formaking a protected disclosure. They should also be aware of the employer’s internalprocedures. The proposal that a duty be placed on employers to put in place andimplement internal procedures for making disclosures is supported by the OPP. It shouldbe mentioned here that the Public Service Commission published a guide for publicsector management together with a draft whistleblowing policy and the view is thereforeheld that the PDA should require all work providers to take similar steps.

18.4 CONCERNS ARISING OUT OF THE IMPLEMENTATION OFTHE PUBLIC DISCLOSURES ACT, 2000 BY MS LORRAINE STOBER57

The Open Democracy Advice Centre (ODAC) came into being in 2001 to assist with theimplementation of the Protected Disclosures Act and the Promotion of Access toInformation Act. In terms of the PDA – ODAC offers:

• a tollfree help line giving legal advice (that is Door 1 that the Deputy Minister spokeabout);

• assistance to whistleblowers if they want to know how to blow the whistle – and onwhat they can blow the whistle;

• assistance to employers who phone ODAC on the PDA; and

• and also assistance to employers in the private and public sector with implementingwhistleblowing policies (these polices are very important so that employees knowhow to blow the whistle and to whom – often employees don’t know whom to go towhen they see wrongdoing in their workplace).

57 Ms Lorraine Stober is with the Open Democracy Advice Centre (ODAC).

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ODAC’s main aim is to promote a culture that is supportive of whistleblowing so that itcan become a safe alternative to silence. ODAC also published a book onwhistleblowing around the world, by looking at what is happening in other countries andthereby contributing towards the promotion of a culture of whistleblowing.Some of the problems noted on the helpline are that the messenger gets prosecutedand the message gets lost. The whistleblower often becomes so embroiled in fightinghis disciplinary hearing in a court case and when one asks what actually happened tothe wrongdoing, nothing has actually happened! This is a most unfortunate situation. Inthat respect the following cases serve as examples:

• Andre du Toit at Beige Holdings who blew the whistle and subsequently becameembroiled in a lengthy battle to save his job (he was eventually dismissed).

• There was also a whistleblower with a big insurance firm who wanted to blow thewhistle on equity policies that were not instituted. In fact his firm had renegedcompletely on the equity policies. He became embroiled in an expensive lengthylegal battle at the Labour Court. (This is why it is so important to get the Legal AidBoard to assist people in terms of the PDA).

Some successes in whistleblowing include the following :

• The Mpumalanga Education Department is not prosecuting the whistleblower whoblew the whistle on the exams scam at the end of last year.

• Two whistleblowers blew the whistle on a large national transport carrier whichperpetuated very unsafe practices. In the beginning, the employer also hauled thewhistleblowers before a disciplinary hearing, but they eventually settled andfortunately they eventually got their jobs back. That was also quite successful.

• There was also Mr Tatolo Setlai who has been re-employed, but not without a longdrawn-out court case, unfortunately.

Quite a few speakers raised the issue of confidentiality and anonymity. At ODAC we liketo distinguish between the two. ODAC is not in favour of anonymous whistleblowing;ODAC calls that a cloak for the malevolent! Anybody can raise anything if they areanonymous. What we like is confidential whistleblowing and we would like to see the Actactually have that as a protection: that one’s identity is protected and that the‘whistleblower’ himself has to give written approval for his identify to be revealed. Thereis a sad case I heard of not so long ago where Employee A blew the whistle onEmployee B and the senior manager actually told B who the employee was. B is nowsuing that employee for defamation of character.

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Also, whistleblowing is not about accusing anybody. It is about raising a suspectedwrongdoing with one’s employer for investigation. The employer will do his/her owninvestigation into the matter and decide what to do when an employee is found guilty.So, ODAC does not support anonymous whistleblowing but it does support confidentialwhistleblowing.

There is also a senior versus junior type of employee problem. I did some training in oneof the smaller provinces and the attendees were all from the various legal departmentsof the provincial government. All of them said that the raising of wrongdoing by peoplewho were very senior was very difficult. One often finds junior people not able to exposethe wrongdoing of senior personnel. A case in point was the very sad case in Britainwhere Dr Shipman killed lots of elderly patients. One person who suspected DrShipman’s crimes, was the taxi driver who drove a lot of the patients to him. He said:“who would listen to me – I’m a mere taxi driver”? That perception is also prevalent inSouth Africa.

Something that the Deputy Minister also mentioned was the need for the PDA to beextended to non-employees. When the PDA was passed by Parliament the JusticePortfolio Committee was concerned about the types of occupational detriment sufferedby ‘whistleblowers’ who were not employees. The SA Law Reform Commission islooking into this situation and will come up with recommendations I’m sure.

It has been a problem that there have been no guidelines or regulations and I waspleased to hear from Prof Sangweni that these will be coming out shortly.

The remedies offered in terms of the PDA. As the Deputy Minister said: “Whistleblowingfollows a labour relations route and therefore, a dismissal pertaining to whistleblowingis automatically regarded as an unfair dismissal.” In terms of the Labour Relations Act,the cap on an automatically unfair dismissal is 24 months salary. That is very little if onehas blown the whistle and been dismissed as a result. Also, what I have mentioned arethe litigation costs which are high. At ODAC we would like to see the Legal Aid Boardbeing able to take on PDA cases in order to assist legitimate candidates.

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18.5 A COSATU PERSPECTIVE OF THE PROTECTEDDISCLOSURES ACT, 2000 BY MS PRAKASHNEE GOVENDER58

INTRODUCTION

Labour made a detailed submission to NEDLAC on the draft version of the DiscussionPaper on Protected Disclosures on 24 April 2004. After considering public comments,the SALRC published a redrafted discussion paper. It is the purpose of this memo torespond to this redrafted version. Accordingly, this constitutes the Labour Constituency’sformal response. However, this must be read together with our April submission foradditional details and context.

Comments on specific recommendations in the discussion paper

i) Extending ambit beyond employment relationship

Paragraph 4.17 reflects that the SALRC has provisionally decided to recommendextending the application of the Protected Disclosures Act (PDA) beyond theemployment relationship. We strongly support this.

We note that there is a minority view that is opposed to widening its application onthe grounds that whistleblowers are “trouble makers”. This reflects a profound lackof understanding of the role and nature of this type of legislation, which is to provideprotection for individuals from reprisals for assisting in rooting out corruption.Further, it is illogical to assume that this is relevant only to the employment context.In addition, detractors must provide compelling reasons to show why South Africashould go against international precedent favouring a wider application.

ii) Replacement of definition of “employee” with “worker”

The Draft Discussion Paper proposed that the definition of “employee” be replacedwith that of “worker”, in the process significantly widening its scope to includeamongst others, independent contractors. We strongly supported this proposal asit would address serious concerns where employers prevent employees fromexercising their labour rights by classifying them as independent contractors. Thisis to be distinguished from cases where a person is a genuine independentcontractor.59

58 Ms Prakashnee Govender is a member of the Labour Task Team of Cosatu.59 However, note that we said that we would revert to our earlier position calling for the incorporation of the presumption in the LabourRelations Act (LRA) against independent contracting in the event that the SALRC chose not to adopt the proposed definition of a“worker”.

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• Independent contractors

Not surprisingly the Business Constituency at NEDLAC has opposed theproposed widening of the definition and specifically the inclusion ofindependent contractors. The SALRC has called for further comment on thisquestion. Labour questions the logic of the arguments offered by Businessagainst the proposed definition. Firstly, Business argues that “all otheremployment legislation specifically excludes independent contractors”. We donot believe that the PDA can be classified as “employment legislation”, merelyon the basis that it is currently limited to employment relationships. In fact it hasalways been the intention to investigate the widening of the PDA beyond theemployment relationships in the long-term. Relevant to this is the fact that theline function department responsible for the legislation is the JusticeDepartment and not the Labour Department.

Secondly, Business argues that “all other employment legislation specificallyexcludes independent contractors”. The intention of employment legislation(which we disagree that the PDA forms part of) to exclude genuine independentcontractors is based on the lack of relevance that labour law sometimes has tothem. For example it would be illogical for a person contracted by a client toinstall computer cabling in a once-off commercial contract to be able to claimmaternity or annual leave from that client. However, the same contractor mayhave observed serious health and safety violations at the client’s premises.There is no rational reason to deny such a contractor protection for making adisclosure. In fact, failure to provide protection will discourage disclosure forfear of losing the contract or even further business from the client.

Business alleges that widening the definition is likely to cause confusion, buthas offered spurious grounds in support of this. The question that must beasked is what is at risk for not providing independent contractors with protectionfor making disclosures, especially where this affects compelling broader socialor national interests?

• Inclusion of “work-seeker” and unemployed person”

In our April submission we proposed that the definition of “worker” should alsoinclude a “work-seeker” or “unemployed person“, which is the approachadopted by the Skills Development Act 97 1998 in relation to the definition of a“worker”. However, the SALRC has neither incorporated this suggestion norhas it responded to our proposals in this regard. Accordingly, on this questiona response from the SALRC is required.

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There are compelling reasons to include work-seekers and unemployedpersons. For example, a work-seeker may be subject to a lengthy recruitmentand assessment procedure in the course affording her/him the opportunity toobserve violations by a potential employer or in the workplace. The work-seeker, however, is unlikely to make a disclosure if this is at the risk of not beingappointed. The proposed reform directed at providing compensation fordamages in such case would make inclusion of this category more viable.

iii) Definition of “employer”

The SALRC is proposing to extend the definition of “employer” to include temporaryemployment services, which we strongly support. In noting that affected employeeshere effectively have two employers, we also argued that a further amendment wasrequired explicitly making both employers jointly and severally liable for compliancewith the PDA. We also pointed out that a similar approach has been adopted insection 82(3) of the Basic Conditions of Employment Act (BCEA), which states:“The temporary employment service and the client are jointly and severally liable ifthe temporary employment service, in respect of any employee who providesservices to that client, does not comply with this Act….”

Under paragraph 4.21 the SALRC, in response to our suggestion, is asking forcomment on how temporary service employees should be treated. We believe thatjoint and several liability would promote better enforcement of the PDA in thisrespect. Accordingly, we are calling on the SALRC to insert a provision replicatingthe BCEA provision above.

iv) Including disclosures relevant to the Employment Equity Act

Ironically, while the PDA is limited to employment relationships, it currently onlyprovides protection for disclosures on unfair discrimination if this relates to thePromotion of Equality and Prevention of Unfair Discrimination Act (PEPUDA). Nomention is made of the Employment Equity Act (EEA). We retain our support, asstated in our previous submission, for the SALRC’s proposal to extend applicationof the PDA to the EEA. However, we disagree with the suggestion under paragraph4.23 that this should be limited to Chapter II of the EEA. It should rather incorporateapplication of the Act as a whole. Chapter III of the EEA deals with employmentequity and affirmative action, and entails many very specific obligations (for e.g.consultation with workers on employment equity plans and reports) that alsorequire the protection of the PDA from violations.

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v) Extending the definition of occupational detriment

Again we wish to register support for the SALRC’s proposal to extend the definitionof “occupational detriment” to include defamation suits and suits based on thealleged breach of confidentiality as well as the loss of or failure to be given acontract. These are classic mechanisms employed to discourage legitimatedisclosures. We are also calling for the list of occupational detriments to be madeopen-ended as the approach in the PDA is currently close-ended.

vi) Extending the list of persons/bodies to whom disclosures may be made

We again register our support for the SALRC’s proposal to extend the above list toinclude amongst others the South African Human Rights Commission, theCommission on Gender Equality, the Independent Authority to RegulateBroadcasting, ombudsmen etc. We are also grateful that the SALRC has taken ourproposal on board regarding the inclusion of the labour inspectorate as well.

vii) Citizens’ whistleblowing

The SALRC is inviting comments on extending the PDA to cover what is oftentermed as “citizens’ whistleblowing”. As indicated in our earlier submission thisbroader category of disclosure is highly desirable. Below are Labour’s responses tothe questions posed by the SALRC on this issue:

• Who should be able to disclose?

“Who” should be defined as widely as possible, with the emphasis on anylimitation rather being on the disclosure being bona fide. Further, whilereferences to citizens have been used for the sake of convenience, we woulddisagree with this being limited to citizens since permanent or temporaryresidents should also qualify. For example, an asylum seeker may witnessirregularities or corruption by Home Affairs Department Officials, but may bereluctant to make a disclosure if this would mean risking not being grantedrefugee status.

• What sort of wrongdoing (and which wrongdoers) should the disclosure relateto?

The range of issues in respect of which a disclosure may be made is currentlyquite broadly defined in the PDA. We believe that this is directly applicable tocitizens whistleblowing.

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• To which bodies or persons should disclosures be made?

This would naturally be determined by the content or subject matter of thedisclosure as well as the location/environment of the violation. In order to covera wider range of contexts, it may be necessary to insert a general provisionrequiring the initial disclosure to be made to a person who has authority over oris in control of an area that is the subject of the disclosure. Further, theproposed extended list of persons to whom disclosures may be made is evenmore relevant in this context. The retention of the current limitation to the PublicProtector and Auditor-General would make implementing a citizens’whistleblowing mechanism, unviable.

• What other requirements ought there to be in order for the disclosure to attractprotection?

The PDA should not be heavily prescriptive in order for protection to be invokedas this would be counterproductive. The emphasis should remain on bona fidedisclosures and on disclosing to appropriate persons or bodies.

• How should detrimental action be defined?

Again, because of the wide ranging potential contexts there may be a need toprovide for a generally worded provision, which would focus on harm,detriment, prejudice, discrimination and hardship that the whistleblower wouldnot have suffered in the absence of making the disclosure. The facts of eachparticular incident will have to be examined on a case-by-case basis.

• What remedies should be provided for?

Remedies could include interdicts, awards of compensation for damages,provisions allowing courts the authority to reinstate or restore the position thatthe whistleblower was in prior to the disclosure etc.

• Should a public body’s contravention of the PDA be a criminal offence?

Yes, as a mechanism of deterrence, but for obvious reasons this should morecorrectly be applied to the public official who is responsible. However, wequestion why this should be limited to public bodies. There have beennumerous high profile corporate scandals (more recently involving Enron andParmalat), which illustrate the extensive social and economic devastation thatis possible as a result of corruption at the hands of private entities.

• From a drafting point of view, and given certain differences such as the natureof the detriments likely to be suffered, is it feasible to combine citizens’whistleblowing with ‘workplace’ whistleblowing? Would it be better to divide thetwo into separate parts or chapters of the PDA?

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We would support the separation of these two mechanisms into separatechapters or parts. The employment context has specific mechanisms andremedies that are not generally applicable. To combine these may createinterpretational problems, which should be avoided.

viii) Immunity from criminal and civil liability

As reflected in our April submission, we continue to support the SALRC’s proposalto introduce immunity from civil and criminal liability for making a protecteddisclosure. After all, a bona fide disclosure can hardly be regarded as protected ifit opens up a person to prosecution or civil law suits and would thereforediscourage disclosures. There is adequate protection in the PDA currently fromabuse since any disclosure that is not bona fide, will be subject to criminalprosecution or civil liability.

The poor enforcement and low level of reliance on the PDA is an indication of theneed for additional protection to encourage whistleblowing. Accordingly, we supportthe proposed amendment of clause 9A by the SALRC under paragraph 4.51, whichexplicitly excludes workers from civil, criminal or disciplinary proceedings as well asthe exemption from liability for breach of contract, oath, confidentiality etc.

ix) Protection of identity of whistleblower

As indicated in our earlier submission, we support the SALRC’s proposal to providefor the protection of the identity of the worker making the disclosure, unless theworker’s written consent is obtained or the disclosure of the identity is necessary.We are also grateful that the SALRC has taken on board our proposal that anydisclosure of identity should only be to necessary parties. Accordingly, we supportthe proposed amendment by the SALRC under paragraph 4.52. Again, the need foradditional protective mechanisms is relevant to encourage reliance on the PDA.

x) Damages for compensation

As reflected in our earlier submission we support the SALRC’s proposal to removethe two-year salary ceiling currently applicable to unfair dismissals in breach of thePDA. We also appreciate that the SALRC has recognised Labour’s concerns aboutproblems facing workers who are subject to unfair labour practices (i.e. that stopshort of dismissal) and the discretionary awards of compensation that areapplicable. Comments are now being asked regarding our proposals to addressthis by linking compensation to actual loss or damage suffered by the worker. Insupport of this proposal, we believe that it is important to take into account theimpact of an unfair labour practice on a worker’s life and consequently its potential

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to discourage disclosure. Loss in income is not limited to dismissals since, ademotion for e.g. could also have major economic consequences and which wouldbe more acute for more vulnerable workers.

xi) Interdicts

As reflected in our earlier submission we support the proposed introduction ofinterdicts. The emphasis would be on preventing the imposition of a threatenedoccupational detriment.

xii) Offences

• Workers who knowingly make false disclosures

As reflected in our earlier submission, we support the SALRC’s view that anemployee or worker should not be criminalised for knowingly making a falsedisclosure. This would discourage reliance on the Act to the point that evenbona fide whistleblowers would choose not to disclose because of the risks. Onthe other hand the PDA only provides protection for bona fide disclosures.Therefore someone who knowingly makes a false disclosure is open to a rangeof civil actions including defamation, breach of contract etc.

• Should it be a criminal offence for an employer to subject a worker to anoccupational detriment?

We are not in agreement with the SALRC’s view that it should not be a criminaloffence for an employer to subject a worker to an occupational detriment,especially since there is little deterrent value in the current setup.

xiii) Disclosures to Trade Union Representatives

Under paragraph 4.98 the SALRC has acknowledged our concerns regarding theneed to provide disclosures to trade union representatives with the same level ofprotection as those made to legal advisers and has asked for comments in thisrespect. On this issue it needs to be pointed out that workers who can afford accessto a legal adviser are a bare minority in this country. A further advantage ofprotecting such disclosures relates to the trade union representative’s proximity tothe workplace and general role in mitigating highly uneven power imbalances inemployment relationships. Ideally, a trade union representative should then beallowed to accompany and assist a worker in making a disclosure to anemployer/superior, which would thereby significantly reduce the possibility of theworker being subject to victimization or intimidation.

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xiv) Creation of a conducive workplace environment

We appreciate that the SALRC has recognised our concerns on this issue and hasinvited public comment in this respect. We reiterate that employers should play arole in creating an environment that would facilitate the implementation of the PDA.As with labour legislation like the BCEA and LRA, this should include postingsummaries and guidelines on the PDA at strategic points in a workplace.

18.6 COMMENTS/CONCERNS AND PANEL DISCUSSION ON THE PRESENTATIONS MADE REGARDING THE PROTECTED DISCLOSURE ACT, 2000.

Comments/concerns on the presentations were raised on the Protected Disclosure Act,2000 (PDA) by the delegates who attended the Roundtable discussion. Some of theseincluded the following:

• There are good intentions and clear objectives behind the PDA and it is supposedto serve the interests of broader South Africa. However, the PDA cannot be a curefor all corruption! Inevitably, there would be a problem for an illiterate person tounderstand their rights or be able to follow the five correct procedures as outlinedby the presenters.

• Looking at a typical scenario of petty corruption; the offender does not threatenfiring, he/she says – “I will kill you!” How can a whistleblower be protected againstphysical reprisal? Demotion at work is the least of his worries when his life is at risk.

• Concern was expressed regarding a lack of input to the SALRC’s proposalsregarding the PDA. More relevant bodies should have been approached or invitedto participate. A representative from the SA Law Reform Commission confirmedthat a discussion paper is open for public comment. The discussion paper has beenpublished in newspapers, and has been circulated to various role players aroundthe country. Comment is welcome from all. The paper may be viewed on theSALRC’s website.

• Public hearings should be organized when introducing new legislation. It isimportant to get input from the general public at large before a new piece oflegislation becomes law.

• One of the downfalls of the PDA is that there is no duty to investigate. It was pointedout that this omission worried several whistleblowers who were interviewed in thisregard.

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• There should be no provision for whistleblowers to submit their informationconfidentially. The PDA is a mechanism of protection – a shield – not a sword.

• Offending employers can be extremely innovative. They may get rid of people inmany ways without ever being able to prove that they have broken the parametersof the PDA.

• It is vital to translate the PDA into all languages. Deputy Minister de Langeundertook to liaise with Prof Sangweni to determine if there are ways that suchtranslation could be fast tracked. It was noted that there is no word for “corruption”in several of the official languages.

• Many people claim to be whistleblowers for their own hidden agendas. Care mustbe taken not to frustrate legitimate business - whether in the private sector or inGovernment. If everybody blows a whistle around something which may turn out tobe legitimate, the beneficiary of services won’t receive it timeously as it may taketime to investigate and resolve a particular matter.

• A forensic auditor mentioned that he came across prospective whistleblowers whoexpected a high degree of protection before disclosing. In this regard, manywhistleblowers believe that they will be afforded protection along the lines of a‘witness protection’ scenario. Clarity ought to be given to such whistleblowersbetween the message they are getting (partial whistleblower protection for super-specific circumstances) and the witness protection context which relates to crimes.A normal employee does not understand such difference. Getting the messageacross to people is where the challenge lies. In the finalized Act it must be ensuredthat it is as close as possible to the scenario that the whistleblower expects.

• Ultimately what one would like to see in South Africa is that each Governmentdepartment has a particular policy encouraging whistleblowing within a department,together with a firm policy to act on information given.

• There should be no negative consequences attached to whistleblowing. Thus, itmust be possible for a whistleblower to make wild claims and defamations withoutsuffering any ill consequences. By simply blowing the whistle, the whistleblowershould have civil and criminal immunity.

• Whistleblowing need to be strengthened for what it is - a shield. That shield shouldbe inculcated in the way organizations are managed. Citizens should have certaintyinto what will happen if they come forward with damaging information. That is whyit is necessary that the whistle should be blown at a high level for example, at theAuditor-General and the Public Protector. The information should be given topeople with authority who can take follow-up action.

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• Legitimate whistleblowing can become a David-versus-Goliath situation. Fewwhistleblowers would be able to afford adequate legal defence if they are financiallyvictimized by a wealthy organization. In this regard it is necessary that the Legal AidBoard should provide services to legitimate whistleblowers. In an additionalcomment it was mentioned that whistleblowing cases could prove to be veryexpensive and that the Legal Aid Board’s current mandate is very narrow and thatit is severely overworked. In the future, it may be possible to expand legal aidthrough clinics but presently there is certainly no indication that the Legal Aid Boardwill ever be able to cope with whistleblowing aid.

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